Archive for the ‘Supreme Court’ Category

Question Answered

Friday, May 14th, 2010

Earlier in the week, I blogged about the one question Elena Kagan needed to answer: What battle did she wage with her rabbi before her bat mitzvah?

The New York Times had disclosed that there had been a brouhaha “over some aspect of the ceremony,” without explaining what, precisely, had been at issue.

Well, thanks to the New York Jewish Week for asking — and answering — that question.

It seems that Barack Obama’s Supreme Court nominee had the moxie to stand on principle — even at the tender age of 12.

This issue was this: Kagan wanted a bat mitzvah; the Orthodox Lincoln Square Synagogue in New York City, where her family belonged, did not have bat mitvot for girls.

Kagan went to her rabbi and told him she wanted to recite the Haftorah, just like the boys, and moreover, she wanted her bat mitzvah on a Saturday morning — just like the boys.

Her rabbi, Shlomo Riskin, told the Jewish Week that such a request was unprecedented.

To his credit, though, the rabbi worked with her. She could have the ceremony on a Friday night, he said; and instead of reading a traditional Haftorah, she could chant, in Hebrew a section from the Book of Ruth.

“I was very proud of her,” [Riskin] said. “She did very well. After that, we did bat mitzvahs all the time. … She was part of my education. This was for us a watershed moment.”

It couldn’t have been easy, in 1973, for a 12-year-old girl to stand up to her Orthodox rabbi for what she thought was right. At an age when most of us are more preoccupied with the bar/bat mitzvah after-party, Kagan not only spoke truth to power, but she forged a compromise that blazed a new path for all the girls who came after her.

Not to make of this long-ago incident than it deserves. But with abortion rights being chiseled away (women in some states will soon be forced to look at ultrasounds, and have the fetus described, before having abortions — even in cases of rape or incest) and immigrants being targeted through the law (did anyone see that Arizona just restricted ethnic studies classes, on the grounds that they promote “ethnic chauvinism”?), Kagan’s moral fearlessness could be a bold corrective.

My Question for Elena Kagan

Monday, May 10th, 2010

Elena Kagan, newly nominated by President Obama for the Supreme Court, will surely be peppered with questions by the Senate Judiciary Committee.

Something tells me, though, that at no point will Kagan be asked the most critical question.

As the Times reports this morning:

The young Ms. Kagan was independent and strong-willed. Mr. [Bill] Lubic [her father’s law partner of 20 years] recalls her bat mitzvah — or bas mitzvah, as it was then called — in a conservative synagogue, where Elena clashed with the rabbi over some aspect of the ceremony.

“She had strong opinions about what a bas mitzvah should be like, which didn’t parallel the wishes of the rabbi,” he said. “But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody.”

I know that Supreme Court nominees are famously tight-lipped. But Americans — and most especially Jewish Americans — must know. Solicitor General Kagan: What battle did you wage with your rabbi at your bat mitzvah?

Did it have to do with Jewish gender roles? A disagreement about the interpretation of the HafTorah? A question about who could sit with the bat mitzvah girl on the bimah?

Let others debate whether Kagan is an activist judge (though it would hard to be more activist than Scalia, Roberts, et. al), or whether she is too progressive (her senior thesis at Princeton was about Socialism in New York City! She clerked for Thurgood Marshall!) … we need to know, Ms. Kagan: what prompted you, as a 13-year-old girl, to take on your rabbi, and how did you get him to cave?

I’ve got a hunch that this liberal Jewish woman — who has taken great pains in her career to reach out to conservatives, including Scalia — is exactly what’s needed on the increasingly conservative Roberts court.

Judge Woods and the Mezuzah

Sunday, April 25th, 2010

Judge Diane Woods is not Jewish. She’s Protestant. And that makes her ruling in the so-called Mezuzah Case even more powerful.

Woods is one of Obama’s top contenders to fill the Supreme Court seat being vacated by John Paul Stevens. In 2009, she was part of a three-judge panel hearing a case that tells us all we need to know about her heart and values.

The plaintiffs in the case, Lynne  Bloch and her children, were long-time residents of Chicago’s Shoreline Towers. The Blochs had displayed mezuzot on their doorposts — as Jews do the world over — for 30 years, without objection.

But in 2001, the condo association adopted new rules: “Mats, boots, shoes, carts or objects of any sort are prohibited outside Unit entrance doors.” And soon enough, the condo began confiscating the Bloch’s mezuzuot.

Reading the case, it’s shocking to see what the Blochs endured. The condo association president told Lynn that if she didn’t like the way the rules were enforced, she should “get out.”  And, when Lynne was on the condo board herself, the president held events Friday night — even though he knew Lynne, who observes the Sabbath, couldn’t attend.  (When asked whether he was aware of Lynne’s religious obligations, he said, “She’s perfectly able [to attend],” but “she decides not to.”)

For over a year, every time the Blochs put a mezuzah up, the association took it down. When Lynne’s husband Marvin died, Lynne put in a special request, asking for the mezuzah to be allowed during the 7-day shiva period. The association relented.  Yet when Lynne and her family returned from the burial with the rabbi, they were shocked to find the mezuzah had been removed. They were humiliated.

The Blochs sued for damages, and also filed suit in federal court, alleging their civil rights had been violated.

At the Appeals Court level,  the three-judge panel initially ruled in favor of the condo association. Judge Woods dissented. She believed the family had the right to hang the mezuzah on its doorpost, and that denying them that right was discriminatory.

When the case came before the the full court, Woods still seemed to be in the minority.  Judge Frank Easterbrook argued that the perhaps the condo’s rule was not discriminatory, but had been put forth, as the Times reports, “with a completely empty head by people who didn’t have a clue about the religious significance of the mezuzah.”

Woods pushed back hard, and eventually swayed the panel to rule unanimously in the Bloch’s favor.

Supreme Court watchers say the case illustrates Judge Wood’s powers of persuasion — a key asset, as whomever Obama appoints will need to be able to woo Justice Anthony Kennedy, the swing vote in a hotly divided court.

But I think it’s  more important for another reason. It shows that Woods has empathy, and a keen sense of justice and fairness.

No doubt, if she’s chosen, the right will attack her as an activist, radical judge. The conservative Judicial Confirmation Network  is on record saying Judge Woods “has betrayed a consistent hostility to religious litigants and religious interests.”

“At the center of this case is a little rectangular box,” the Court wrote, “about six inches tall, one inch wide, and one inch deep, which houses a small scroll of parchment inscribed with passages from the Torah, the holiest of texts in Judaism.”

Judge Woods antithetical to religious interests? The Blochs of Chicago would disagree.

We’ve Lost the War

Wednesday, July 15th, 2009

By all accounts, Judge Sonia Sotomayor will eventually be confirmed by the Senate as the first Latina on the U.S. Supreme Court.

Yet, I can’t shake this nagging feeling that while we will win this battle, we’re losing the war.

Issue No. 1 in her Senate confirmation hearings, which are ongoing as I write this, is whether Sotomayor would let her Hispanic ethnicity or gender shape her rulings. She has spent the better part of two days trying to assure ranting Republican senators that it would not.

Which is not only patently false, it confirms for me that Republicans have won the broader debate in this country: Progressive jurists quake in their boots at the mere thought of being labelled “activists” who “legislate from the bench” by letting who they are and how they feel about it impact their decisions.

(As if conservative jurists don’t do this all the time.)

The front page of the Akron Beacon Journal this morning includes an AP article headlined: ‘Sotomayor denies racial bias’:

An attempted play on words ”fell flat” in a speech in 2001, Sotomayor told Sen. Jeff Sessions, R-Ala., referring to remarks in which she suggested that a ”wise Latina woman” would usually reach a better conclusion than a white male.

”It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge,” Sotomayor said.

The New York Times plays it the same way:

”My words failed, they didn’t work,” she told Senator Cornyn, who zeroed in what he said were several instances in which she asserted that “a wise Latina woman” might reach a different, even a better, decision than a white male.

All this fuss is about a 2001 Berkeley lecture on law and cultural diversity, in which Sotomayor said:

“Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First … there can never be a universal definition of ‘wise.’ Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

With a richness of her experiences. That’s the part media accounts leave out. And yet, that was Sotomayor’s point. Are Republicans suggesting that a white male who has lived on a remote mountaintop studying U.S. law all his life — never once venturing down into the messy and confounding and beautiful streets of America, but with a “perfect” understanding of the law — would somehow be their ideal candidate?

Sotomayor’s comment is not only utterly refreshing, it highlights an unassailable truth. If our society was perfect, we might not need judges with varied backgrounds and experiences. If we had not had slavery and Jim Crow, maybe there would have been no need for Thurgood Marshall. If women had always had the right to vote, and earned equal pay for equal work, perhaps we could have lived without O’Connor and Ruth Bader Ginsberg.  If gay Americans had the right to get married and serve openly as U.S. soldiers, the Court might not need a gay judge.

But they don’t, and we do, and hopefully one day we’ll have one.

By forcing Sotomayer to contort her legal self into a barely recognizable shadow of her ethnic self, minority Republicans remain on offense, in control the broader message, which will continue to have ramifications for a long time to come.

In my ideal America, Judge Sotomayor would look those Republican senators in the eye and say: Absolutely, my experiences as a Latina woman, to say nothing of my experiences growing up in a South Bronx housing project, will affect how I rule on the nation’s top court, just as Chief Justice John Roberts’ experience at Roman Catholic grade school and boarding school, and Justice Clarence Thomas’ experience as a beneficiary of affirmative action, surely affect their decisions.

That’s how it should be. It’s a big part of the reason why, over time, our vast, relatively young system of law bends slowly, achingly toward justice.

Thank you, and God bless America.

Sessions on Sotomayer

Wednesday, May 27th, 2009

It’s amazing to me, the things Republicans say about Supreme Court nominees, with a straight face.

Here’s Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, in the latest AP article (“No filibuster, but Sotomayer battle still looms“):

We have an absolute constitutional duty to make sure that any nominee, no matter what their background and what kind of life story they have, that we examine that so the American people can know that the person we give a lifetime appointment to … will be faithful to the law and not allow their personal views to influence decision-making.

The Republicans want automatons, who read the law and spew out the answers, without regard to their own “personal views” and life experience. As if there were some pure rendering of the Constitution that could be gleaned, over and over, without regard to who we are, what we’ve read, where we went to school, who our parents are, who we married, whether we have children, whether or not we’ve been discriminated against, or victimized, or grown up in a Housing project.

Why do we need people to do this? Wouldn’t it just be better to have some kind of sophisticated computer system — like the BCS, used by college football to pick the two best teams each year for the national championship game — that could take in all the data and spit out the answer Rhenquist would have loved, over and over and over again?

I’m sure Iphone could make an app for that.

I have a friend here in Ohio, a Jewish Republican, running for statewide office. He is a marine, fought in Iraq. In high school, he was the quarterback of his football team, a public high school. His team was a melting pot for blacks and Jews, he told me. But as they travelled around Ohio, they often encountered anti-Semitism and racism. Once, they travelled to Cleveland for a game, walked into the visitor’s lockerroom, and, there on the chalkboard was a Swastika, with the message: “Go Home Blacks and Jews.”

(I’m happy to report, the road team won the game.)

That’s the kind of life experience that I’d want my Supreme Court Justice to have, and — yes — to draw upon, when making decisions about, say, hate crime law. Or anything else.

There’s a killer New Yorker article this week, about Chief Justice John Roberts. It quotes Roberts, from his confirmation hearings — an illuminating take on exactly what Republicans mean when they talk about being “faithful to the law”:

Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

Yet the New Yorker goes on to report:

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican party.

We are supposed to believe that in each and every case, he has been faithful to some objective constitutional law, as laid down by the Framers, and not, as Sessions put it, allowed his personal views to impact his decision making?

It’s incredible to me, too, that the media generally accepts this line of argument without challenge. (Wait for it — we’ll hear it over and over during the Sotomayer confirmation trials from the GOP side.)

You don’t have to look very far to see just how Roberts’ personal views impact his decisions. He has a filter, and he uses it, just like the rest of us.

The New Yorker mentions a case in Connecticut, brought by white firefighters “denied promotions even though they scored better than black applicants on a test.” Roberts, siding with the firefighters, grilled the lawyer defending the city:

Now why is this not intentional discrimination? You are going to have to explain that to me again, because there are particular individuals here. And they say they didn’t get their jobs because of intentional racial action by the city. … All you care about is who is getting the promotion. All you care about is his race.

Sounds to me like his personal views are influencing his decision making.

Roberts was the captain of his football team in high school. Here’s a guess: he never walked into a lockerroom, saw a slur on a chalkboard, and felt — they’re talking to me. It’s me they hate.

It might not change his decision. But I bet it would influence him. As it should.

‘Neurotic Democrat???’

Wednesday, May 27th, 2009

The other day, I received an email from a friend, slugged: ‘Neurotic Democrat???’

He wrote:

You’ve been slacking on your blog updates. Not one single solitary post since 2/2/09?

It’s been a busy four months. Among many, many other things, I’ve been working on a novel. I’ve also found it more difficult, since the election, to find my voice. During the election, things seemed fairly black and white, no pun intended. We’ve entered a political world — thank god — where the defining characteristic seems to be shades of gray.

To wit, this headline, currently leading the NY Times Web page: “On Sotomayor, Some Abortion Rights Advocates Show Unease.”

Did anyone ever think that a few months into Obama’s term, we’d be reading this:

Some liberal leaders are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter to supporters, Nancy Keenan, president of the National Abortion Rights Action League, urged them to pressure senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

To be sure, most abortion rights backers — myself included — believe Sotomayer will support a woman’s right to choose. But there’s another dimension to this. My sister, an attorney and ardent supporter of a woman’s right to choose, has long tried to explain to me that Roe v. Wade is in fact not a well argued or solid foundation for those rights. Might Sotomayor support a woman’s right to choose, without supporting Roe v. Wade? And, an equally important followup: Is there any way at all for this court to sustain a federal right to choice, while at the same time striking down Roe?

As I say, shades of gray.

In any event, thanks, Michael, for the kick in the ass. It’s good to be back.